"Spain’s been reported to the European Commission over hundreds of millions of Euros in allegedly unlawful subsidies given to power plants.

With the support of ClientEarth, Spanish organisations IIDMA and Px1NME have submitted a complaint to the Commission about unlawful State aid under two capacity mechanisms – amounting to around €700 million per year.

The capacity mechanisms are paid for by every consumer to guarantee electricity supply even at times of peak demand.

IIDMA director Ana Barreira said: “These capacity mechanisms breach EU State aid law on multiple grounds: there is no common interest objective, the aid is disproportionate and there is no need for state intervention, among other reasons. Why should we pay these extra costs in our electricity bill?”

Are capacity mechanism payments justified?

Capacity mechanisms in Spain are among the largest and most expensive in Europe. According to this complaint, this State aid is not justified to cover Spain’s electricity demand.

Piet Holtrop, lawyer for Px1NME, said: “Despite the overcapacity of electricity generation in Spain, the owners of coal and gas plants have unduly received multi-million Euro subsidies since 1997.”

"Countries differ on how to empower consumers as part of a long-term regional energy plan.

Battle lines are being drawn over the future of renewable energy self-consumption in Europe following the publication of legislative proposals last fall.

Spain is among the European Union member states expected to fight renewable energy self-consumption proposals contained in the "Clean Energy for All Europeans" package due to come into force from 2021 up until 2030.

The Spanish administration, which is ideologically opposed to renewables and has sought to hamper their progress for the last five years, is understood to be taking aim at European plans to encourage energy sharing over community microgrids.

Other member states likely to oppose various renewable energy components of the "Winter Package" include the Czech Republic and Poland, which rely heavily on native coal power, and possibly the Netherlands, which holds major gas reserves.

Meanwhile, France’s stance on the proposals “will depend on who’s leading the French government,” said Daniel Pérez Rodriguez, a partner with renewables-focused law firm Holtrop in Spain. France, which is both pro-renewables and highly dependent on nuclear power, holds presidential elections this year."

"Spain’s National Association of Photovoltaic Energy Producers (ANPIER) has opened a permanent office in Brussels to help direct European Union policy on renewables by publicising the historic financial suffering of thousands of Spanish solar consumers at the hands of retroactive legislative changes.

ANPIER believes its is necessary to have a solid representation in Brussels to make known the financial ruin of 62,000 Spanish solar families when Feed-in tariff (FiT) subsidies were cut in 2012 alongside other damaging policy changes for PV.

Daniel Pérez, attorney at Holtrop S.L.P, who has worked on many solar-based legal cases in Spain, told PV Tech: “It’s a very intelligent move, as most Spanish utilities have offices in Brussels. So it is good for ANPIER to be there to try to influence policies in Europe.

“At the end of the day, Spanish laws, as in every Member State, must respect EU law, so it is important how EU law is defined. Now that the regulatory framework 2021-2030 is being negotiated, it is the right moment to explain in Brussels what is being [done] against renewables in Spain to avoid it happening again.”

"Renewable energy companies in Spain are making claims against banks for misleading them over complex financial products since the economic crisis.

Helena Badger, lawyer at Spanish renewables specialist law firm Holtrop, which is representing several solar claimants on IRS-based issues, told PV Tech the claims are based on banks allegedly not providing sufficient information to investors on the risks and full complexity of these financial products.

During 2015, the appeal courts gave 782 judgements on these kinds of contracts, of which 82% were in favour of the claimant, added Badger.

Rapid financing was necessary

Energy producers used to have incentives to invest in renewables because of favourable regulation in Spain, said Badger. They were awarded high market prices for the sale of their energy to encourage them to invest. However, there was a deadline on 30 September 2008 to complete installations and start feeding energy into the grid in order to receive the higher feed in tariffs.

Badger said: “This date is very relevant because it coincides with the economic crisis.”

Along with the deadline, interest rates were still high in Spain at the time, meaning producers, who needed rapid financing for their solar projects, were vulnerable to accepting the banks' unfair conditions.

The banks said that interest rates had been rising so producers would need so-called “insurance against interest rate fluctuations”. Banks then offered these complex financial products such as swaps, which producers would sign contracts for.

“They were signing it and then realising somewhat later that the interest rates were just falling, falling, falling,” said Badger. “They were stuck paying high interest rates and it wasn’t working like an insurance; it was just working as a minimum interest rate that they had to pay whatever the circumstances.”

The Supreme Court has found that typically there is a conflict of interest between the two parties, because for the bank to make money with these products, the client must lose money, added Badger. This conflict of interest is further aggravated by the fact that there is asymmetric information between the parties. The four major banks already under investigation also all offered swaps to renewable energy producers at the same time; all of them more or less with the same terms, while producers were faced with the time pressure of obtaining financing.

Small firms more likely to win

Smaller firms are more likely to be successful in litigation, as larger firms – those with annual turnovers or more than €20 million – are presumed to have strong enough advisory to fully understand complex financial products, such as swaps.

Holtrop only started on IRS cases four months ago and it is currently representing claims against BBVA. The firm has represented more than 3,400 producers in legal cases on the retroactive cutbacks against the Feed-in-tariffs and a large number of these producers had swaps in their financing. As a result many are considering taking legal action, however, some are struggling to finance litigation as a result of the punishing cutbacks."

"Twin brothers are now running Spain’s energy ministry with the surprise appointment of Alvaro Nadal as the new Spanish energy minister.

Formerly director of the economic bureau of the president, Alvaro Nadal takes charge of the country’s energy policy over and above his twin brother Alberto Nadal, who will remain in his current role as secretary of state for energy. However, Alberto may still be moved to another position as Spain’s new government takes shape over the next two weeks.

Spain has been without a government since last year, but has allowed for a minority government ruled by the conservative Partido Popular party to finally take over. The new government could see in major utility-scale renewables tenders and the surprise repeal of the infamous ‘Sun Tax’ on self-consumption.

Daniel Pérez, attorney at Holtrop S.L.P, told PV Tech that the industry will be relieved that Alberto was not appointed minister, “because he has something personal against renewables”.

Perez added: “Anyone apart from him is better. That’s important. Most associations will say that this guy is against renewables.”

Alvaro Nadal was not part of the severe cutbacks against solar seen over the last few years even though he was advising president Mariano Rajoy and would have been aware of the policies, said Perez. Alvaro Nadal also has a reputation for being more open to dialogue than his twin brother. It will now be up to Alvaro to choose whether to keep his twin as secretary of state for energy or not and this could signal whether the previous anti-renewables politics will be maintained of upheaved."

Spain’s new minority government is set to herald a new wave of gigawatt-scale renewable tenders and its lack of a majority may even lead to the lifting of a controversial ‘Sun Tax’ on solar self-consumption.

Spain has been rudderless without a government since last year, but the Socialist Party (PSOE) has finally voted to allow the conservative Popular Party (PP) to rule as a minority government.

Confirming July’s news of a potential 3GW capacity in renewable energy tenders, secretary of state for energy Alberto Nadal has now said that one tender will be completed before the end of the year. Exact capacities and the terms of the tender are unclear, but industry bodies expect roughly 1GW this year followed by two tenders next year of a further 1-2GW.

Daniel Pérez, attorney at Holtrop S.L.P, who has worked on many of the legal cases on solar in Spain, told PV Tech that he is sceptical of the government organising the tender this year as the details have yet to be adopted and a similar promise was made last year for a wind and biomass tender, which was delayed to late January. He also dismissed speculation of a full 3GW capacity as more of a “demand by PV producers than a real number”.

Both ongoing and fresh legal proceedings will continue to hinder development of Spain’s nascent solar sector under the likely new coalition led by the conservative People's Party (PP). Last week 6,000 small investors in Spain's solar sector became the latest consortium to claim for damages at the Supreme Court against losses they suffered after the government retroactively removed support for the sector in 2012. The case was put forward by the National Association of Fotovoltaic Energy Producers (ANPIER), represented by the Holtrop firm of lawyers.

The case will decide the rights of the claimants, and have wider consequences for investment in the sector from small-scale producers.

"Confidence may not recover before legal security has been restored to the pioneering 62,000 fotovoltaics families,"¨Miguel Angel Martínez-Aroca, president of Anpier told ICIS. It will be several years before the case is resolved, according to Daniel Pérez, a lawyer at Holtrop..............]

The Spanish Supreme Court has ruled that solar PV companies and investors should be compensated by the Spanish administration over historic amendments to the feed-in-tariff (FiT) policy for new installations.

The win for solar announced on 29 April has been welcomed by law firms and solar stakeholders, who claim it may set a precedent for future cases, in a nation where the majority of legal cases of late have seen solar losing out. Spanish law firm Evolutiza Lawyers and Tax Advisors was responsible for filing the appeals in defence of the PV investors.

Daniel Pérez, attorney at Holtrop S.L.P, a law firm that has been heavily involved in other legal cases surrounding the Royal Decrees on solar, told PV Tech: “It is very good at least to have a partial win. But it is quite limited because it affects only one specific case, although it might be a precedent for future complaints.”

If you would like to read the full article, as published in PV Tech on May 10th 2016, please follow this link.

Spanish parties representing a majority in parliament have signed an agreement to remove the controversial Royal Decree against self-consumption of solar energy within 100 days of a government being formed, according to Spain’s solar association Union Espanola Fotovoltaica (UNEF).

Daniel Pérez, Attorney at Holtrop S.L.P. explains in the article in PV Tech published March 10th that the parties not just wanted to abrogate the RD but also create a new modified RD on self-consumption and states that the situation for owners of an existing installation is criticle because of the changes to come in by April 10 (existing installations have six months after the approval of the RD at October 10 to adapt to the new norm) as they will have to make costly adaptations to their installations in case the RD is not removed before that date.

You can read the full article as well as an article published the same day at Planet Save following these links: PV Tech and Planet Save.

According to the article published in PV Tech January 25th last two spanish political parties "Socialist Party" and "Podemos" propose repeal of the "Sun Tax", although Daniel Pérez - attorney at Holtrop S.L.P. Transaction & Business Law - says there is another way if parliament adopts a law where the Royal Decree on self-consumption of solar energy in Spain is abrogated rather than substituted.

On Monday January 18 the trial to claim back the wall paintings of the monastery of Sijena, Aragon in Spain began. The paintings are actually in the "Museu Nacional d'Art de Catalunya" at Barcelona and were taken there after a big fire at the monastery at the beginning of the Civil War. Our counsel Abel Garriga defends the interests of the Museu d' Art de Catalunya (MNAC ) against the claim of the paintings of the Monastery of Santa Maria de Sijena filed by the Community of Aragon.

Greentechmedia, the website focued on deliver news, research, and analysis in the business-to-business greentech market, published, on Monday, an article explaining the situation of the self-comsumption in Spain, and the point of view of Endesa about the battery storage. This article contains the statements of opposition of Daniel Pérez – partner of HOLTROP, S.L.P.- regarding the new regulation.

The review "PV Tech" has published today an article by Tom Kenning talking about the third set of proporsals for the Royal Decree on taxes for solar self-consumption, which improves on the previous proposals but maintains the core punitive measures.

The article includes the statemets made by Daniel Pérez, attorney at Holtrop S.L.P, wich has declared that "the latest proposals made several improvements, such as making self-consumption compatible with last-resource tariffs, which are discounted tariffs for low income consumers". However, two main punitive measures of the Royal Decree had been maintained: on one hand, a disproportionately bureaucratic authorisation procedure. On the other hand, a tax on energy produced and consumed without feeding the grid. In Pérez words: “This is a tax for electricity produced by consumers, so for us the concept is already wrong. They are not using the grid so they shouldn’t pay for producing. [The Government has] made some improvements for users but not in the core areas of the legislation.

Finally, he agrees that “In general terms the Royal Decrees are still very negative, because they are much worse than the situation we have now.”

Last Sunday 16th of november, we were positively surprised by the article published in the newspaper “EL PAÍS”. This article mentions that the Anticorruption Prosecutor has been interrogating several ministers of the PSOE Government responsible of Energy between 2007 and 2010.

The question was is to clarify what happened to a debt of large utilities, of between 2.5 and 3.5 billion euros, and to find out about why these utilities never returned any benefits overcharged by the “Costes de Transición a la Competencia CTC), even though a State Attorney report in 2008 supported that.

The 3rd of june, Plataforma por un Nuevo modelo Energético, represented voluntarily by the lawyers of HOLTROP S.L.P, denounced the leaders of the Industry Minister, for traffic of influencesand misapropiation of resources, for having allowed the prescription of a multi billion debt.

The review "CSP Today" published last friday this article by Jason Deign, which addresses the issue of the publication by the Spanish government of the details of the renewable energy remuneration scheme that will replace feed-in tariffs. The author explains why the proposed formula for remuneration after initial calculations falls far short of the promised level.

The review "La Marea" published yesterday this article by Jordi Ortiz, where issues such as the current state of the electricity market, the defense of energy sovereignty and the vision that the European Union has in relation to the matter were addressed thoroughly. In this article, the author took the opportunity to applaud the intervention of Daniel Perez, a member of Holtrop, SLP, in the conferences of Nov. 23.

“The Baltic Course”, an International Internet Magazine about Baltic news & analytics, posts on its website an article about a Technical meeting held in Brussels the 5th of December, with six European Commission officials of DG Energy, DG Competition and DG Taxation and several attorneys, one of them Piet Holtrop, representing renewable energy producers and associations from Greece , Latvia and Spain.

The 5th December, on his trip to Brussels to meet with the legal cell of the EU Energy Commissioner Oettinger, Piet Holtrop and other members of the delegation, were interviewed by Anca Gurzu of Europolitics.

In this article, Piet Holtrop, member of APPA and founder of the Law firm Holtrop S.L.P. Transaction & Business Law, an international firm specializing in European Law in the renewables sector, reviews the legal rebuke suffered by clean energy since 2010 and provides arguments that explain why European Law will not allow certain outrages against renewables.